DIFC LAWS AMENDMENT LAW DIFC LAW NO. 1 of 2014

127 Pages·2014·0.37 MB·English

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DIFC LAWS AMENDMENT LAW

DIFC LAW NO. 1 of 2014

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PART 1: GENERAL

1. Title

This Law may be cited as the “DIFC Laws Amendment Law No.1 of 2014”.

2. Legislative Authority

This Law is made by the Ruler of Dubai.

3. Date of enactment

This Law is enacted on the date specified in the Enactment Notice in respect of this Law.

4. Commencement

This Law comes into force on the date specified in the Enactment Notice in respect of this Law.

PART 2: AMENDMENTS TO THE REGULATORY LAW 2004

5. The Regulatory Law 2004 is amended as prescribed in this Part.

6. The following Articles of the Regulatory Law 2004 are to be amended by inserting the underlined
text and deleting the struck through text as shown below:

PART 2: THE DFSA

CHAPTER 1 - THE STRUCTURE OF THE DFSA

…..

8. The Powers, Functions and Objectives of the DFSA

(1) ……

(4) In exercising its powers and performing its functions, the DFSA shall take into
consideration the following guiding principles, being the desirability of:

(a) pursuing the objectives of the DIFC as set out under Dubai Law in so
far as it is appropriate and proper for the DFSA to do so;

(b) fostering the development of the DIFC as an internationally respected
financial centre;

(c) co-operating with and providing assistance to regulatory authorities in
the United Arab Emirates State and other jurisdictions;

(d) minimising the adverse effects of the activities of the DFSA on
competition in the financial services industry;

(e) using its resources in the most efficient way;

(f) ensuring the cost of regulation is proportionate to its benefit;
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(g) exercising its powers and performing its functions in a transparent
manner; and

(h) complying with relevant generally accepted principles of good
governance.

9. Structure of the DFSA

The DFSA shall be made up of:

(a) the Chairman of the DFSA;

(b) the DFSA Board of Directors;

(c) the Regulatory Appeals Committee of the DFSA Board of Directors;

(d)(c) the Financial Markets Tribunal of appointed by the DFSA Board of Directors;

(e)(d) the Chief Executive and members of his staff; and

(f)(e) other any DFSA committees as may be duly appointed from time to time.

…..

CHAPTER 2 - THE DFSA BOARD OF DIRECTORS

20. The Powers and Functions of the DFSA Board of Directors

(1) The general powers and functions of the DFSA Board of Directors are to:

(a) ensure that the DFSA exercises its statutory powers and performs its
statutory functions in accordance with its objectives;

(b) make policies relating to the regulation of financial services and related
activities and any other matters over which the DFSA has exclusive
jurisdiction;

(c) review the performance of the Chief Executive;

(d) give the Chief Executive written directions as to the furtherance of any
of the DFSA’s objectives or the performance of any of the Chief
Executive’s statutory functions. Such written directions shall not
constitute Rules;

(e) arrange for the DFSA to enter into binding and non-binding
arrangements, including memoranda of understanding and co-operation
with similar bodies, provided they do not conflict with the treaties to
which the United Arab Emirates State is a party; and
…..
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CHAPTER 4 - THE REGULATORY APPEALS COMMITTEE OF THE DFSA BOARD

26. The Regulatory Appeals Committee

(1) The DFSA Board of Directors shall form a committee called the Regulatory
Appeals Committee.

(2) The DFSA Board of Directors shall appoint:

(a) from among its members, other than the Chairman of the DFSA or the
Chief Executive of the DFSA, a Board Member to serve as chairman of
the Regulatory Appeals Committee; and

(b) members of the Regulatory Appeals Committee.

(3) None of the following persons shall be appointed as members of the
Regulatory Appeals Committee:

(a) the Chairman of the DFSA;

(b) the Chief Executive of the DFSA; or

(c) a Member of the Financial Markets Tribunal; or

(d) subject to Article 26(4), any other director, officer, employee or agent
of the DFSA or of any other agency or body of the DIFC established
under Dubai Law.

(4) The DFSA Board of Directors may appoint Members of the DFSA Board as
members of the Regulatory Appeals Committee.

(5) The DFSA Board of Directors may appoint persons, who are not DFSA Board
Members, as members of the Regulatory Appeals Committee.

(6) Members of the Regulatory Appeals Committee shall have relevant
qualifications, expertise and experience in the regulatory aspects of financial
services and related activities.

(7) The DFSA Board of Directors may reappoint or dismiss the chairman of the
Regulatory Appeals Committee.

(8) The chairman of the Regulatory Appeals Committee may establish one or more
panels of the Committee for the purpose of hearing appeals commenced under
Article 28 of the Law.

(9) On the commencement of an appeal under Article 28, the chairman of the
Committee, shall without undue delay, select an appeal panel of at least three
Committee members and appoint its chairman.

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(10) An appeal panel has the powers of the Committee to hear and decide the
appeal.

(11) The Regulatory Appeals Committee has power to do whatever it deems
necessary for or in connection with, or reasonably incidental to, the
performance of its functions.

(12) The chairman of the Regulatory Appeals Committee or the chairman of a panel
selected to hear and determine an appeal may make any procedural order or
order granting interim relief that the Regulatory Appeals Committee has power
to make relating to an appeal.

27. Jurisdiction of the Regulatory Appeals Committee

(1) In Article 27(2):

(a) ‘applicant’ means a person who has applied to the DFSA for a
decision; and

(b) ‘officer, employee or agent’ of a person includes a person who
proposes to become an officer, employee or agent of a person.

(2) The Regulatory Appeals Committee has jurisdiction to hear and determine any
appeal where:

(a) an applicant appeals the decision of the DFSA in relation to an
application for a Licence or for an extension to the scope of a Licence;

(b) an applicant, Authorised Firm or Authorised Market Institution appeals
the decision of the DFSA to impose or vary or withdraw a condition or
restriction to its Licence;

(c) an Authorised Firm or Authorised Market Institution appeals a decision
of the DFSA in relation to the exercise of its power to withdraw a
Licence or to withdraw an authorisation in relation to a Financial
Service;

(d) an officer, employee or agent of an Authorised Firm appeals a decision
of the DFSA in relation to his application for Authorised Individual
status or for extension of his status;

(e) an Authorised Individual appeals the decision of the DFSA to impose
or vary or withdraw a condition or restriction to the grant of
Authorised Individual status;

(f) a person appeals a decision of the DFSA to:

(i) issue a written notice, or vary or withdraw a written notice to
which he is subject, under Article 58(1); or

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(ii) refuse to vary or withdraw a written notice following his
request pursuant to Article 58(8);

(g) an Authorised Individual appeals a decision of the DFSA to:

(i) issue a written notice, or vary or withdraw a written notice to
which he is subject, under Article 58(2);

(ii) refuse to vary or withdraw a written notice following his
request or the request of an Authorised Firm pursuant to
Article 58(8); or

(iii) suspend or withdraw his Authorised Individual status under
Article 58(2), (3) or (5);

(h) an Authorised Firm or Authorised Market Institution appeals the
decision of the DFSA to issue a notice to it or make a requirement of it
under Article 74, 75, 75A, 76 or 88;

(i) a person appeals a decision of the DFSA made pursuant to its powers
under Article 64 or the Rules made for the purposes of that Article;

(j) an applicant appeals a decision of the DFSA in relation to an
application for registration as an auditor; or

(k) a person appeals a decision of the DFSA to:

(i) issue an administrative fine under Article 90; or

(ii) issue an administrative censure under Article 91; or

(l) an appeal is brought under such other jurisdiction as the DFSA Board
of Directors may provide in the Rules or as may be conferred by or
under any other DIFC Law.

(3) Subject to the Law and Rules, the Regulatory Appeals Committee may make
rules of procedure governing the commencement, hearing and determination of
appeals, including as to:

(a) the rules as to evidence;

(b) the manner in which a power under Article 29 may be exercised;

(c) the manner in which conflicts of interest of members of the Regulatory
Appeals Committee may be prevented;

(d) notification to the Chief Executive of the commencement of an appeal;
and

(e) the manner in which the Chief Executive may appear and be heard in
the appeal.
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(4) Proceedings and decisions of the Regulatory Appeals Committee shall be heard
and given in public unless:

(a) the Regulatory Appeals Committee hearing an appeal orders otherwise;
or

(b) the rules of procedure of the Regulatory Appeals Committee provide
otherwise.

(5) No person may appeal or review a decision of the Regulatory Appeals
Committee other than by way of judicial review proceedings before the Court
on a point of law.

(6) Where:

(a) an appeal is commenced in accordance with Article 28 of the Law
before the Regulatory Appeals Committee and a proceeding is
commenced before the Financial Markets Tribunal in accordance with
Article 32 of the Law or Article 56 of the Markets Law; and

(b) there is a common question of law or fact in the appeal and the
Tribunal proceeding and it is in the interests of the DIFC, justice and
efficiency;

the chairman of the Regulatory Appeals Committee, on his own motion or that
of a party to the appeal and with the consent of the parties and president of the
Financial Markets Tribunal, may direct that the appeal be:

(c) referred to the Financial Markets Tribunal for determination on such
terms as the chairman may direct;

(d) heard at the same time or following the Financial Markets Tribunal
proceeding; or

(e) stayed until the determination of the Financial Markets Tribunal
proceeding.

(7) Where an appeal has been referred to the Financial Markets Tribunal for
determination under this Article, the Financial Markets Tribunal has the same
powers the Regulatory Appeals Committee has under Article 29 of the Law to
hear and determine the appeal.

(8) No person may appeal or review a decision of the Financial Markets Tribunal
on an appeal that has been referred to the Tribunal under this Article other than
by way of judicial review proceedings before the Court on a point of law.

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28. Commencement of an Appeal

(1) A person may appeal to the Regulatory Appeals Committee only in
circumstances where the committee has jurisdiction to hear and determine the
appeal under Article 27.

(2) A person shall commence an appeal by giving the Regulatory Appeals
Committee a written notice in the form provided for in the rules of procedure
of the Regulatory Appeals Committee.

(3) An appeal shall be commenced:

(a) within 30 days of the relevant decision of the DFSA; or

(b) within such further period not exceeding 30 days as may be approved
by the Regulatory Appeals Committee where it is satisfied that such
approval is appropriate in the circumstances.

29. Powers to Hear and Determine an Appeal

(1) Upon the chairman of the Regulatory Appeals Committee receiving a notice of
an appeal falling within the jurisdiction of the committee, the chairman of the
Regulatory Appeals Committee shall without undue delay select a panel of at
least three members of the Regulatory Appeals Committee, one of whom may
be its chairman, to exercise the powers and perform the functions of the
Regulatory Appeals Committee to hear and determine the appeal.

(2) For the purposes of hearing and determining an appeal, the Regulatory Appeals
Committee may:

(a) stay the decision of the DFSA to which an appeal relates and any
related steps proposed to be taken by the DFSA until the committee
has determined the appeal;

(b) consider any evidence relating to the decision of the DFSA to which
the appeal relates, whether or not such evidence was available to the
DFSA at the material time;

(c) receive and consider any material by way of oral evidence, written
statements or documents, even if such material may not be admissible
in evidence in civil or criminal proceedings in a court of law;

(d) determine the manner in which such material is received by the
committee;

(e) by notice in writing require a person to attend before it at any sitting
and to give evidence and produce any item, record or document in his
possession relating to the subject matter of the appeal;

(f) administer oaths;
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(g) examine or cause to be examined on oath or otherwise a person
attending before it and require the person to answer truthfully any
question which the committee considers appropriate for the purposes of
the proceedings;

(h) order a witness to provide evidence in a truthful manner for the
purposes of the proceedings by sworn statement;

(i) order a person not to publish or otherwise disclose any material
disclosed by any person to the committee; or

(j) exercise such other powers or make such other orders as may be
necessary for or ancillary to the conduct of the appeal or the
performance of its function.

(3) At the conclusion of an appeal, the Regulatory Appeals Committee may:

(a) determine what, if any, is the appropriate action for the DFSA to take;

(b) remit the matter to the Chief Executive with such directions, if any, as
the committee considers appropriate for giving effect to its
determination, save that such directions may not require the DFSA to
take any step which it would not otherwise have power to take; and

(c) make an order requiring a party to the appeal to pay a specified
amount, being all or part of the costs of the appeal, including those of
any party to the appeal. Such costs may be recovered from the
recipient of the order in a court of competent jurisdiction as a debt due
to the party which incurred the costs.

(4) The Chief Executive must act in accordance with the determination of, and any
direction given by, the Regulatory Appeals Committee.

(5) A certificate that purports to be signed by the chairman or proper officer of the
Regulatory Appeals Committee and states that the Regulatory Appeals
Committee on a specified day made a specified determination or made a
specified finding of fact, is in any proceedings before the Court, where
relevant:

(a) conclusive evidence of the determination of the Regulatory Appeals
Committee made on that day; and

(b) prima facie evidence of the relevant finding of fact.

30. Enforcement

(1) A person commits a contravention if the person, without reasonable excuse:

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(a) fails to comply with an order, notice, prohibition or requirement of the
Regulatory Appeals Committee under Article 29;

(b) having been required by the Regulatory Appeals Committee under
Article 29 to attend before such committee, does not attend or leaves
the place where his attendance is so required without the permission of
such committee;

(c) hinders or deters any person from attending before the Regulatory
Appeals Committee, giving evidence or producing any item, record or
document, for the purposes of any appeal commenced under Article
28;

(d) threatens or causes any loss to be suffered by any person who has
attended before the Regulatory Appeals Committee, on account of such
attendance;

(e) threatens or causes any loss to be suffered by any member of the
Regulatory Appeals Committee or any person assisting such committee
at any time; or

(f) engages in conduct, including without limitation the:

(i) destruction of documents; or

(ii) giving of information that is false or misleading;

that is intended to obstruct the Regulatory Appeals Committee in the
exercise of any of its powers.

(2) A person who commits a contravention under Article 30(1) is liable to
proceedings in the Financial Markets Tribunal for orders including but not
limited to the imposition of a fine and censure.

(3) Where a person fails to comply with an order, notice, prohibition or
requirement of the Regulatory Appeals Committee made under Article 29, the
Court may, on application of:

(a) the committee; or

(b) the Chief Executive at the request of the committee;

make any order as it thinks fit to enforce such order, notice, prohibition or
requirement.

CHAPTER 5 - THE FINANCIAL MARKETS TRIBUNAL

31. The Financial Markets Tribunal

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